Mr. GuadalupeG. Villarreal,
Assistant City Attorney, City of Racine, appearing on behalf of the City.

ARBITRATION AWARD

The Union and the City named above are parties to a 1988-1989 collective
bargaining agreement which provides for final and binding arbitration of certain
disputes. The Union made a request, with the concurrence of the City, that the
Wisconsin Employment Relations Commission appoint an arbitrator to resolve the
grievances concerning Tim Uick. The undersigned was appointed and held a hearing
on July 28 and September 11, 1989, in Racine, Wisconsin, at which time the
parties were given full opportunity to present their evidence and arguments.
Transcripts of the hearing were made, both parties filed briefs, and the record
was closed on December 20, 1989.

ISSUES:

The parties stipulated that the following issues are to be decided by the
Arbitrator:

Did the Employer violate the collective bargaining agreement by
Joe Golden's
and Glenn Meteyard's actions on January 20, and January 23, 1989? If so,
what
is the appropriate remedy?

Did the City of Racine have just cause to issue the Grievant, Tim
Uick, an
oral reprimand on February 9, 1989? If not, what is the appropriate remedy?

RELEVANT CONTRACT PROVISIONS:

WITNESSETH

Both of the parties to this Agreement
are desirous of reaching an amicable
understanding with respect to the Employer-Employee relationship which exists
between them and to enter into an agreement covering minimum rates of pay, hours
of work and other conditions of employment with a view of securing a harmonious
cooperation between Employer and employees and averting disputes.

. . .

ARTICLE II

Management and Union Recognition

. . .

E. Management Rights. The City possesses the sole
right to operate City
government and all management rights repose in it, but such rights must be
exercised consistently with the other provisions of this contract and the past
practices in the departments covered by the terms of this Agreement unless such
past practices are modified by this Agreement, or by the City under rights
conferred upon it by this Agreement, or the work rules established by the City
of Racine. These rights which are normally exercised by the various department
heads include, but are not limited to, the following:

1. To direct all operations of City
government.

2
. To hire, promote, transfer, assign and retain employees in positions
with the City and to suspend, demote, discharge and take other
disciplinary action against employees, for just cause.

. . .

4. To maintain efficiency of City
government operations entrusted to
it.

5
. To introduce new or improved methods or facilities.

6
. To change existing methods or facilities.

. . .

8. To determine the methods, means
and personnel by which such
operations are to be conducted.

. . .

In addition to the Management Rights listed above, the powers of
authority
which the City has not officially abridged, delegated or modified by this
Agreement are retained by the City. The Union recognizes the exclusive right of
the City to establish reasonable work rules.

. . .

ARTICLE III

Grievance Procedure

. . .

J. Decision of the Arbitrator. The decision of the
Arbitrator shall be
limited to the subject matter of the grievance and shall be restricted solely to
interpretation of the contract area where the alleged breach occurred. The
Arbitrator shall not modify, add to or delete from the express terms of the
Agreement.

K. Discipline. The Union shall be furnished with a
copy of any written
notice of reprimand, suspension or discharge. The City agrees that it will
attempt at all times to use the disciplinary process as a means to correct
shortcomings on the part of City employees in terms of their overall work
performance. Discipline, therefore, is intended to initiate a corrective action
on the part of the employee. A written reprimand sustained in the Grievance
Procedure or not contested shall be considered a valid warning. The Union agrees
upon receipt of the reprimand notice to review the situation with the employee
in an attempt to correct the problem. When an employee's record is cleared of
minor infringements for a year, all previous records of minor infringements shall
be removed from his personnel file.

. . .

BACKGROUND:

The Grievant, Tim Uick, has worked for the Solid Waste Department, picking
up trash in the City, for the past nine and a half years. This grievance arose
because of an incident that occurred with a paper recycling truck when the
Grievant and his partner, Joseph Pribyl, were collecting garbage along a
residential street.

In 1974, the City undertook a paper recycling program, with homeowners
bundling papers and garbage collectors putting them into a bin on the passenger
side of the garbage truck. The City has one recycling truck which services all
11 garbage routes by collecting the papers from the side bins. The recycling
truck usually comes to the collectors' route and pulls ahead of the garbage truck
by a few stops. Then the driver of the garbage truck has a chance to see him and
put his truck alongside the recycling truck, in effect parallel parking or double
parking next to it, so that the side bin with papers is near the hopper of the
recycling truck for ease of the transfer of papers. If the trucks are not in a
position to parallel park, the distance between the bin with papers and the
hopper of the recycling truck becomes greater, slowing down the transfer. The
driver of the recycling truck is responsible for taking the papers from the side
bin, although the collectors often help out with that task.

Anthony Pearson was assigned to be the recycling truck driver in October
of 1988. When he first started that job, Pribyl and Uick pulled the garbage
truck alongside of his truck, double parking it. However, a couple of weeks
before an incident of January 20, 1989, (1) they had been parking the garbage
truck behind the recycling truck instead of alongside of it. Pearson talked
about the problem with his two field supervisors, Jeffrey Fidler and Joe Johnson.

On January 20, Pribyl and Uick were working Route 9, a mostly residential
area, picking up garbage on Russet Street around 8:45 a.m. when Pearson came
along with the recycling truck. Pribyl was driving the garbage truck, and he
pulled his truck up behind the recycling truck instead of alongside of it.
According to Pribyl, Pearson had parked too far from the curb, and if Pribyl had
pulled alongside Pearson, the garbage truck would have been over the center line
and in a position possibly to cause an accident. When Pearson asked them what
the problem was, Pribyl and Uick told him double parking would be a safety
hazard. Pearson left without taking any papers, and called his supervisor,
Johnson. Johnson met Pearson and then went to see Glen Meteyard, the
Superintendent of Streets, Solid Waste and Bridges.

According to Meteyard, Johnson told him that Pribyl and Uick were pulling
the garbage truck up behind Pearson's recycling truck, and then sitting there and
smoking while Pearson unloaded the papers. Meteyard told Johnson to stop out on
the route and inform them of the procedures they were to follow.

Sometime after 9:00 a.m. on January 20, Johnson caught up with Pribyl and
Uick and asked them if they had a problem with Pearson. Both of them said no.
According to Johnson, he then asked them why they were not parking alongside the
recycling truck, and Uick told him that it was a safety hazard. According to
Uick, Johnson was not talking about the parking procedure but was telling them
that from now on, they had to help Pearson unload the paper bin, and those were
orders coming from Meteyard. Pribyl asked if Pearson would have to help them
pick up the garbage, and Johnson replied that he was just asking them if they had
a problem with Pearson. According to Pribyl, Johnson told them to help Pearson
transfer the papers and to double park the garbage truck.

While talking with the two collectors, Johnson thought that Pribyl
understood what was expected of him, but that Uick was not accepting what Johnson
was telling him. Uick did not respond or say anything to Johnson, but just stood
there. Johnson told Uick that if he did not like the orders, he could have a
meeting with Meteyard and Joe Golden, the general maintenance supervisor. Uick
told Johnson that if there was going to be a meeting with Meteyard, he had better
get the Mayor there. Johnson left the route, reported back to Meteyard, who
decided to have a meeting at the end of the day.

Meteyard arrived at the solid waste office shortly before 3:00 p.m. for a
meeting. Meteyard, Johnson, and Fidler were there for management, and the
intention was to call in Pribyl and Uick, as well as the Union president,
Douglas Dresen. Meteyard asked Johnson to call Pribyl and Uick into the office
about 2:55 p.m., and Johnson went outside the office where a number of employees
were waiting at a nearby time clock to punch out. Johnson told Pribyl and Uick
that Meteyard was there and they were going to have a meeting. According to
Johnson, Pribyl walked into the office but Uick said he was on his wash-up period
and that he was not coming in. Meteyard said he could hear this remark because
the door was partially open. Johnson testified that when Uick said he was not
going to a meeting with Meteyard because he was on his wash-up time, the crowd
around the time clock all laughed and called it great. According to Uick, he saw
Johnson but the conversations going on near the time clock were loud and he did
not pay any attention to Johnson. Then Johnson went back into the office, where
Meteyard told him to tell Uick that if he did not come into the office, he did
not have to report for work the following Monday morning. Johnson relayed that
message, and about the same time, Dresen peeked out the door and told Uick to
come into the office. Uick went into the office.

The six people attending this meeting have a couple of different versions
about what happened next, particularly concerning Meteyard's conduct toward Uick.
According to Uick, when he walked into the meeting, Meteyard told him, "You and
I are going to have a blow out." Meteyard and Uick were standing about six
inches apart, with a railing dividing them, and Meteyard told Uick that he had
a "horseshit" attitude. Meteyard had raised his voice and told Uick that he
should shape up or move out of the department. Meteyard also said that from now
on, they had to help Pearson unload the paper bin. Pribyl asked if this was
being directed just toward them or if this was a rule for everybody in the solid
waste division. Meteyard replied that it was for everyone, and there would be
a general announcement that everyone was to help Pearson unload the paper bin.
According to Uick, Meteyard indicated that Uick was smirking at him, and asked
him several times if he was refusing that order. While Meteyard was talking to
Uick, he poked him in the chest with his index finger about three or four times,
while telling him that he had a "horseshit" attitude and that he had better clean
up his act. Uick then asked Meteyard if he was touching him, and Meteyard backed
off and told him to get "the hell" out of there. Uick said nothing to Meteyard
except to ask if he was touching him.

According to Pribyl, Meteyard was standing right in front of Uick, and
poked him at least three times in the right shoulder. Pribyl recalled seeing
Uick's sweater pushed in by Meteyard's poking. Meteyard stated that he wanted
them to help Pearson unload the bin, but did not discuss how to park the garbage
truck during this meeting. Pribyl told Meteyard that he understood and that Uick
said he did not refuse to follow the orders. According to Dresen, Uick came into
the meeting and leaned on the railing. Meteyard walked up to Uick and remained
about six inches from him, told him that he had a "horseshit" attitude, and poked
him about three or four times in the chest.

According to Meteyard, Pribyl had come in first and asked if all the
collectors were going to be informed that they would double park and that they
were to help unload the bin. Meteyard said yes, that there would be a general
statement made Monday morning, but because of the fact that Johnson had brought
this to his attention, he wanted to make sure that Pribyl and Uick heard directly
the procedures to follow. Pribyl said that was fine and he had no problem with
it. Uick would not answer or say anything. So Meteyard told Uick that he felt
his attitude was bad, that if he did not want to follow the procedures set up by
the Commissioner and the Public Works committee, that it would be best if he went
to another department or left and got a job some place else. Meteyard said Uick
had turned his back to him as he was talking, and Meteyard reached out, grabbed
the upper part of Uick's shoulder, shook his arm, and said, "Tim, I am not done
talking to you yet." Uick told him to take his hand off his arm and not to touch
him again. At that point, Meteyard felt that meeting had gone too far and ended
the meeting.

According to Johnson, Meteyard was trying to tell Uick about helping unload
the bin, but Uick was looking away. Meteyard grabbed Uick by the arm to get his
attention and said, "Listen to me when I'm talking to you." Uick replied, "Hey,
you get your hand off of me. You don't touch me." Johnson stated that Meteyard
did not raise his voice. According to Fidler, the meeting was volatile, with
Meteyard raising his voice and telling Uick, "You have a horseshit attitude."
Meteyard put his hand on Uick's shoulder and said, "Will you look at me, I'm
trying to talk to you." Uick told Meteyard to take his hand off him, and
Meteyard then ended the meeting.

After Uick left the meeting, Joe Golden, the general maintenance
supervisor, came in. While Dresen, Fidler, and Johnson were still there,
Meteyard told Golden that the meeting had gotten out of hand, and that Golden
should have a meeting with Uick on Monday morning. Meteyard felt that Uick had
a problem dealing with supervisors or anyone in authority, and that they had
talked with Uick in the past but had not reprimanded him. Therefore, Meteyard
determined that in the future, the supervisors would be reprimanding him on work
rule violations, safety violations, or contract violations. Dresen told Meteyard
that if he was going to yell at Uick, he should have stayed back and not have
touched him.

Another meeting took place on Monday, January 23, with Golden, Fidler,
Johnson, Dresen and Uick in attendance. Golden told Uick that in the past, the
supervisors had been reluctant to give him any reprimand because they felt that
they could correct a situation by talking about it. Golden further told him that
there had been problems with the public and with his supervisors who felt
somewhat intimidated by him, because he would make comments to them about being
singled out. Golden told Uick that the supervisors would not stand for that
anymore, and if it continued, he would be reprimanded accordingly. Uick told
Golden that he was upset that Pearson, who had only two years seniority, had been
chosen for the recycling truck job when other people had more seniority. Golden
also told Uick that because he had been involved with complaints from the public,
it would be difficult for the supervisors to lean in his favor if there was a
question.

Fidler recalled the January 23rd meeting very low keyed, and that Uick was
told that there were enough complaints on him in dealing with the public, and
that if there were other complaints and Uick was found to be wrong, he would be
reprimanded. Fidler said that he and Uick had a working relationship and that
the two of them had no problems lately.

According to Uick, Golden also told him that he had a problem with his
partner, Pribyl. Uick said that Golden told him he had a poor work attitude,
that taxpayers are not pleased with him, his partners are not pleased with him,
and that the whole Union was not pleased with him. When Golden said that they
had complaints, Uick asked, "Where are they?" However, Golden did not supply
Uick with any documentation of the complaints and said that taxpayers do call in.
Golden said that from then on they would send two supervisors to talk to him, and
Uick felt that he was going to be given a hard time on the job. According to
Uick, Golden said, "If there would be a complaint coming in from the taxpayers,
that we would listen to the issues, but with your past, we're going to lean more
towards the taxpayers than you." When Uick asked about Pearson's assignment to
the recycling truck, Golden explained that Pearson was put on the job because
employees with a lot of seniority get promoted into the street maintenance
department and do not stay in the solid waste department. Therefore, the
department would have trained people on the recycling job only to lose them as
they moved into street maintenance. The solid waste department hoped to use a
younger person with less seniority who would be with the department for five
years or more.

According to Dresen, Golden made a statement toward the end of the meeting
to the effect that supervisors were going to be watching Uick, and they would
take the citizen's word for something over Uick's word, and they were not going
to give him any break at all. Dresen raised a concern that such supervisory
conduct would be a form of harassment, and that he did not want to see
supervisors following Uick around looking for something.

Uick filed two grievances, one against Golden (#8-89) and one against
Meteyard (#9-89) sometime between the dates of January 23 and
January 30. (2)
Grievance #8-89 states the following:

On January 23, 1989, Tim Uick was verbally harassed
and intimidated by Mr.
Joe Golden. We feel this is a violation of Management Rights, Article II,
Section E and any other article(s) that may apply. Adjustment required: Written
letter of apology. Cease and desist from any and all further harassment and
intimidation toward Mr. Uick.

Grievance #9-89 states the following:

While attending a meeting on January 20, 1989, Tim
Uick was physically and
verbally abused; threatened and intimidated by Mr. Glenn Meteyard. We feel this
is a violation of Article II, Section E and any other article(s) that may apply.
As well as a gross unprofessional and capricious action not harmonious to a good
cooperative labor-management relationship. Adjustment required: Written letter
of apology. Cease and desist from any and all further harassment and
unprofessional conduct towards Mr. Uick.

On January 30, Meteyard issued the following oral reprimand to Uick:

On Friday, January 20, 1989 you were insubordinate to
both your immediate
supervisor and the superintendent of streets and solid waste. You also verbally
threatened the superintendent during the course of a meeting that was held with
you and your partner. For these reasons, I am issuing this oral reprimand for
the following work rule violations:

Section "Q" work performance paragraph A)

S
ection "R" personal actions paragraph B)

Any further violations of the work rules will result in the next
step of
progressive discipline.

On January 31, Uick filed a third grievance, #10-89, which states the following:

On Monday, January 30, 1989, Tim Uick received an
Oral Reprimand for
violating work rule: Section "Q" Work Performance Paragraph (A) Section R
Personal Actions Paragraph (B). We feel this is a violation of management
rights, Article II, Section E and any other article(s) that may apply. We also
feel this is further harassment of Tim Uick of the incident that happened on
January 20, 1989. Adjustment required: Remove oral reprimand from any and all
of Tim Uick's personnel files.

The City denied the first two grievances, #8-89 and #9-89, stating that it found
no violation of Article II, Section E, or any other contractual provision. In
addition, the City responded to #8-89, the grievance against Golden, with the
following:

Mr. Uick is not being harassed or intimidated by
management;
if anything,
the opposite is occurring.

The City's response to grievance #10-89, the one protesting the oral reprimand
of January 30, was the following:

The City will be removing the oral reprimand of
January 30, 1989 issued to
the grievant and will replace it with an oral reprimand which more appropriately
reflects the corrective action expected. A further review of the original
reprimand revealed that you may not have been "technically" insubordinate,
therefore a more appropriate reprimand will be issued.

The City revised its oral reprimand on February 9 to state the following:

On Friday, January 20, 1989, you were disrespectful,
uncooperative and
contentious with the supervision in the Department of Public Works. Your
attitude was threatening, intimidating and quarrelsome which showed a lack of
willingness to cooperate. You have been spoken with in the past concerning your
attitude toward supervision, your job and the public. Therefore, you are being
issued this oral reprimand in violation of Local 67 Work Rules "Q" and "R" as
well as the commonly accepted modes of conduct in an employee-employer
relationship. Further violations of these or other work rules will result in
further disciplinary action.

The grievances were all processed to arbitration. Grievances #8-89 and #9-89 are
reflected in the first stipulated issue, and #10-89 is reflected in the
second stipulated issue.

THE PARTIES' POSITIONS:

The City:

The City asserts that both Pribyl and Uick did not comply with the proper
way to unload the newspaper bin into Pearson's recycling truck. While the Union
and Uick have attempted to cloud the issue by claiming that the collectors did
not double park next to the recycling truck on January 20 because it presented
a safety hazard, Russet Street is a residential street and not a busy street.
The collectors double park 95 percent of the time in the downtown area where
traffic is ten times as heavy as on a residential street. Also, the January 20th
incident was not the only time that Pribyl and Uick refused to double park next
to Pearson's truck to unload the paper bin.

The City argues that Uick would not acknowledge that he understood what he
was being told by Pearson, Johnson, and Meteyard. Uick refused to take part in
any discussion regarding his shortcomings and simply refused to respond.

While Pribyl was the driver on January 20 and equally responsible with Uick
for conduct on the street, the City submits that Uick was orally reprimanded for
his failure to acknowledge the directions given to him by Johnson, Golden, and
Meteyard, and for his actions in response to being called into the meeting with
Meteyard on January 20. Uick's response to Johnson's visit on the route was to
ignore and laugh at Johnson and to sarcastically indicate that if he had to meet
with Meteyard, he wanted the Mayor of the City to be present. Uick then ignored
Johnson's request to come into the DPW office by saying he did not hear Johnson's
request, while Johnson's testimony shows that Uick refused, saying he was on his
wash-up period. Pribyl was in the same area with Uick, and he came into the DPW
office without a problem. Dresen corroborated Johnson's testimony that Johnson
heard Uick refuse to come in because it was five minutes to 3:00 p.m.

The City notes that an oral reprimand is the first step in corrective
discipline. Pribyl did not receive an oral reprimand because he acknowledged the
problem and accepted what Johnson and Meteyard attempted to communicate to him.
The City objects to the Union's attempt to emphasize that the January 20 meeting
was called without notice and with the intent to discipline an employee, as the
meeting was called to the Union's president's attention and no discipline was
imposed at the meeting. The oral reprimand given to Uick resulted from Uick's
continued efforts to ignore what he was being told by Meteyard, which included
his initial refusal to come into the DPW office and to acknowledge that he was
being told to comply with the proper way of parking and unloading newspapers.
In a follow-up meeting with Fred Larson, the Commissioner of Public Works, Uick
continued to indicate that he would not unload from a double parked position
because he considered it an unsafe operation.

The City acknowledges that Meteyard's description of Uick's attitude was
crude, but notes that Meteyard had one supervisor visit Pribyl and Uick on the
route, when Uick refused to respond and asked that the Mayor be at any meeting,
and then Meteyard heard Uick's response that he was on his wash-up time and was
not coming into the meeting. Meteyard outlined his concerns in the initial oral
reprimand, which was amended to eliminate charges of insubordination. The
amended reprimand was to correct Uick's actions in the future in dealing with the
recycling truck operations and to address his conduct at the January 20 meeting.

Further evidence of Uick's attitude is that he believed the January 23
meeting with Golden was set up possibly to get an apology from Meteyard. The
City asserts that this shows Uick's inability to understand what he is being
told, and an oral reprimand is the only way to emphasize what corrective action
needed to be taken.

The City submits that the record does not show that there was a long delay
in imposing discipline. While the Union has urged that there is the concept of
"double jeopardy" in this case, the concept is inapplicable where the preliminary
action taken against the employee may not reasonably be considered final, as in
a case where an initial suspension later becomes a discharge. In this case, the
only change was to amend the rational for the oral reprimand whereby the term
"insubordination" was eliminated after a review of the facts. Nonetheless, the
City's position is that the present record before the arbitrator could support
a charge of insubordination if it were still part of the oral reprimand.

In conclusion, the City submits that the evidence shows that the oral
reprimand was issued for cause based on Uick's actions on January 20, where he
refused to acknowledge Johnson's initial instructions on how to pick up recycled
newspaper with the recycling truck, his initial refusal to come into the DPW
office, and his conduct during the meeting. The City asserts that the Grievant
has failed to produce any evidence that the meeting on January 20 with Meteyard
of the meeting on January 23 with Golden was harassment or, more importantly, a
violation of any of the provision of the collective bargaining agreement. These
meetings included Union representatives and established the City's attempt to get
Uick's acknowledgement and/or understanding of what he was being asked to do when
the recycling truck came to his route.

The Union:

The Union asserts that the January 20 meeting which was held by management
was grossly unprofessional and capricious, resulting in a break down of
harmonious labor-management relations. The record shows the volatile manner in
which Meteyard conducted himself, beginning the meeting by telling Uick that they
were going to have a "blow-out" and positioning himself one-half foot from Uick.
Uick did not incite or provoke Meteyard, or say one word or confront Meteyard,
although Meteyard's unprofessional demeanor escalated. The Union looks to prior
meetings with Meteyard, Dresen, and LeRoy Schmidt, the chief steward, as examples
of Meteyard's management style.

The Union notes that by Meteyard's own admission, he made physical contact
with Uick on January 20. If an employee initiated physical contact with
Meteyard, discipline would be warranted. Thus, the Union submits that Meteyard
is not above his own standard and not above nor beyond reproach. Meteyard's
disregard of Uick's contractual rights are in violation of provisions contained
in the Witnesseth section of the labor agreement, as well as Article II,
Management Rights, Section E, 1. As to Article II, the Union asserts that there
is no rational for how yelling, using profane language, or physically abusing an
employee can help maintain the efficiency of City government operations.

According to the Union, the January 23 meeting with Golden was a further
display of harassment against Uick which was unjustified and resulted in a
further erosion of harmonious labor-management relations. Golden told Uick that
there were problems between Uick and his partner, Pribyl, while Pribyl had no
problems working with Uick. Other members of the bargaining unit had no problems
working with Uick, although Golden said that they did. Although the City has
attempted to show that there have been many complaints filed against Uick by
taxpayers, the City introduced only one complaint into evidence. Golden produced
no documentation of alleged complaints when asked to do so by Uick. Golden's
statements that two supervisors would talk to Uick in the future and that
taxpayers' statements would be given more weight than Uick's defenses are not
conducive to efficient City operations.

The Union argues that the City failed to meet its burden of proof in
issuing an oral reprimand to Uick on February 9, that it subjected Uick to double
jeopardy in issuing the reprimand, and issued the reprimand without just cause.
When the City called Uick adversely as a witness in the arbitration hearing, it
asked him if he understood that the reprimand was for his actions on January 20
as to how he carried out his job duties. If Uick were reprimanded for
performance of his job duties, which was from the method of parking the solid
waste truck to unload papers to the recycling truck, the driver of the solid
waste truck on January 20 was Pribyl. Therefore, the reprimand should never have
been issued to Uick for his job performance on the morning of January 20.

In its oral reprimand issued on February 9, the City failed to substantiate
what Uick violated. While the reprimand stated that Uick violated work rules Q
and R, there is no evidence in the record to show what work rules Q and R, there
is no evidence in the record to show what work rules Q and R state.

The Union notes that when the City issued the first reprimand on
January 30, Uick grieved it, and the City revised the reprimand. The Union
submits that the revised reprimand was in retaliation for Uick's grieving the
original reprimand, placing him in double jeopardy.

The Union asserts that Uick had no notice of a rule for parking garbage
trucks, as Uick had never seen a copy of "Recycle for Racine" (City Ex. #7), but
testified that the collectors use common sense in parking. The record shows that
employees do not double park next to the recycling truck in all cases but only
under safe conditions.

The Union argues that the City did not conduct a fair investigation into
the incident. When Johnson went out to the route, he did not meet with Pribyl
and Uick at the same location where they had met up with Pearson. The afternoon
meeting with Meteyard later in the day cannot constitute a fair investigation
where Meteyard yelled at Uick, used profane language toward him, and physically
abused him. The "judge" at the investigation was Meteyard. The Union asks how
Uick could be accused of being disrespectful, uncooperative and contentious as
well as threatening, intimidating and quarrelsome when he never said a word.
Finally, the Union asks how Uick could be disciplined for the manner of parking
the solid waste truck when he was not driving the truck.

The Union notes that the action of discipline must be commensurate with an
employee's proven offense, and submits that the City did not prove that Uick was
guilty as charged.

The Union requests the Arbitrator to find that the City violated the labor
agreement. As a remedy, it asks that the City issue a written letter of apology
to the Grievant (from both Meteyard and Golden), that the City be ordered to
cease and desist from further harassment of the Grievant; and that the City
remove the oral reprimand from any and all of the Grievant's personnel files.

DISCUSSION:

The Arbitrator will deal first with the second issue stipulated, that is:
Did the City of Racine have just cause to issue the Grievant, Tim Uick, an oral
reprimand on February 9, 1989? The parties have been somewhat unclear about why
the reprimand was issued. Uich believed that the reprimand was issued for his
performance on the morning of January 20th. (3)

If the oral reprimand were in fact handed down to Uick for his work
performance on the morning of January 20th, it would have been a reprimand for
the manner in which the solid waste truck parked, behind the recycling truck
instead of parallel to it. However, the oral reprimand could not withstand
scrutiny for that reason, because Pribyl, not Uick, was the driver of the truck
on that morning. (4) At a minimum, the
City would have had to issue an oral
reprimand to Pribyl for parking the truck in an incorrect manner as well as to
his partner Uick in order to avoid disparate treatment of the two employees.
Furthermore, the City does not have a hard and fast rule that the solid waste
trucks are to be parallel parked next to the recycling truck on all occasions,
as it has left some discretion up to the drivers depending on the conditions they
encounter. While the parallel parking method is the preferred procedure, there
is no evidence that drivers cannot, on occasion, deviate from that procedure
under certain conditions.

There is no doubt in the Arbitrator's mind that Pribyl and Uick were
deviating from the preferred procedure on too many occasions, as she accepts
Pearson's testimony that they were parking behind him instead of parallel to him
for the last couple of weeks preceding the January 20th incident. It is not
likely that Pearson would have gone to Johnson or Fidler if this had been an
isolated incident. However, the City would not have just cause to issue a
reprimand to Uick for the parking of the truck where in fact Pribyl was the
driver.

Meteyard's understanding of why the reprimand was issued was the following:

Q: What was, in your understanding, the oral reprimand
for? What was
it for?

A: For refusing a direct order from a supervisor to come
into the
meeting and for the attitude that was shown during the meeting.

Q: With respect to his actions on January 20 on the
street, was that
taken into account?

A: The fact that he wasn't following in the -- Let's see here.
Work
performance, not following instructions of his supervisor.

Q: What, to your understanding, was what he was not
performing or
following instructions from his supervisor?

A: That he wasn't following the proper procedure for
unloading papers
on the recycling truck. (5)

Meteyard first noted that the reprimand was issued for refusing Johnson's order
to come into the meeting later in the afternoon on January 20th. However, the
City had already rescinded the portion of the reprimand which dealt with Uick's
initial refusal to come into the meeting by revising the reprimand. Both the
documentary evidence and the testimony show that the City decided that Uick was
not technically insubordinate, inasmuch as he came into the meeting on the second
request. As for the reprimand being issued for the "attitude that was shown
during the meeting," this will be dealt with in some detail later. If Meteyard
considered the reprimand to be for not following the instructions of his
supervisor, Johnson, Johnson never gave Uick a direct order. (6)

Then Meteyard said the reprimand was for not following the proper procedure
for unloading papers on the recycling truck. Meteyard testified that the
recycled paper is the responsibility of the driver of the recycling truck (Tr.
Vol. I - p. 42) but that the route collectors are to help unload that bin for a
speedier operation. Pearson considered it his job to take the papers out of the
bin (Tr. Vol. I - p. 73). Meteyard told Pribyl during the January 20th meeting
that there would be an announcement made the following Monday that all the
collectors were to help Pearson unload the bin.

The Arbitrator notes that what started out as a dispute over the parking
procedure quickly turned into a dispute over unloading the paper bin. When
Johnson went to Meteyard on January 20 before going out on the route, he told
Meteyard that Pearson complained about Uick and Pribyl sitting in the truck and
smoking while Pearson unloaded the truck. Both Pribyl and Uick related that
Johnson's comments to them out on the route dealt with helping unload the bin.
Pribyl even raised the question of whether Pearson had to help collect the
garbage, if they were to help Pearson unload the bin. At the meeting with
Meteyard, Pribyl did not recall Meteyard mentioning the parking dispute, just the
unloading procedure. Obviously, Meteyard was talking about the unloading
procedure, not the parking procedure, when he told Pribyl that there would be a
general announcement for everyone regarding helping unload the paper bin. That
announcement was made the following Monday. The City is free to establish such
a new work rule - it just cannot apply it retroactively for disciplinary
purposes, if it expects to withstand the test of just cause for discipline.

Then there is the oral reprimand itself which states that Uick was
disrespectful, uncooperative and contentious with the supervision in the DPW,
that his attitude was threatening, intimidating and quarrelsome, showing an
unwillingness to cooperate, and that he was being issued the oral reprimand for
violating work rules Q and R as well as the commonly accepted modes of conduct
in an employee-employer relationship. This comes closer to what the City
actually wants to reprimand Uick for -- his attitude.

However, there are several problems with the reprimand, not the least of
which is its overbreadth. It is the City's burden to prove that Uick was
disrespectful, uncooperative, contentious, threatening, intimidating,
quarrelsome, uncooperative, or those things that it states in its reprimand. The
City has failed to meet its burden.

At worst, Uick may have been considered to be "contentious" when he told
Johnson that parallel parking presented a safety hazard, and that if there was
going to be a meeting with Meteyard that the Mayor better be there. However, the
evidence does not show that Uick was uncooperative or would be so in the future.

Johnson felt as if Uick was "not accepting" what he was telling Uick (Tr.
Vol. II - p. 29). The real problem, as Johnson testified, is that Uick would not
say yes or no, but just stood there. This is the same thing that actually
happened in the later meeting with Meteyard -- Uick did not respond. Uick may
be a difficult employee for management to direct, but there is no showing that
Uick's failure to respond meant he was disobeying directions or going to refuse
to obey them in the future. It may be preferable for an employee to say
something to management to indicate that he both understands and intends to
follow directions. However, the City of Racine is not the U.S. Army and an
employee is not required to say, "yes sir," to a supervisor, especially where the
evidence fails to show that Johnson's statements to Uick demanded a response of
some kind. Uick's failure to indicate his acknowledgement of management's
directions by saying something is clearly a management problem, but management
must deal with that. However, in this case, it dealt with it in a most egregious
manner.

The Arbitrator accepts the Union's version of Meteyard's conduct during the
meeting on January 20th. While Meteyard, Fidler, and Johnson all testified that
Meteyard only put his hand on Uick's arm when Uick turned his back to Meteyard,
Meteyard himself admitted that the meeting had gotten out of hand. Meteyard
clearly realized that his own conduct had gotten out of hand, and it is more
likely that version told by Uick, Pribyl, and Dresen, actually happened -- that
Meteyard poked Uick in the chest or shoulder area, yelling at the same time, "You
have a horseshit attitude." While Johnson testified that there was no yelling
or raised voices, Fidler testified that the meeting was volatile and Meteyard
said, "You have a horseshit attitude." Meteyard never denied making that
statement. Furthermore, Pribyl recalled that when Meteyard poked Uick, he saw
Uick's sweater being pushed in, a recollection of a detail that Pribyl would not
likely make up. The Union witnesses to the event had more detail in general,
such as recalling the railing that separated Uick and Meteyard, and that Meteyard
stood about six inches away from Uick.

The Arbitrator also accepts the fact that Meteyard was upset at the start
of the meeting due to Uick's initial refusal to attend it. While Uick claimed
that he never heard Johnson tell him to come into the meeting, Pribyl heard the
direction. The Arbitrator finds that it is likely that Uick heard the order but
said that he was on his wash-up time, because Johnson would not have likely told

the people already in the office the same unless it were true. However, Uick
responded to the second order, and the City has already acknowledged that it
changed the reprimand because Uick came into the meeting, albeit on the second
request.

Nothing Uick did -- or could have done -- warranted the tirade launched
against him by Meteyard, when Meteyard poked him in the chest, yelling at him
that he had a "horseshit" attitude. Meteyard's conduct was both physically and
verbally abusive, as well as outrageous and offensive. While Meteyard was trying
to get a response from Uick, this employee was suddenly put in an explosive
position by a superior, and his restraint to Meteyard's attack was at least
appropriate, if not somewhat admirable, under the circumstances. Yet the final
irony was that Meteyard then reprimanded Uick, calling him threatening,
intimidating and quarrelsome, when just the opposite was true. It was Meteyard
who deserved those adjectives, not Uick, who said nothing except that Meteyard
should not touch him. (7)

The next part of the reprimand state that Uick violated work rules Q and
R, and while those work rules were not entered into the record, the Arbitrator
accepts the City's statements in its' post-hearing brief that those work rules
state what the City says they state, namely referring to insubordination,
disobedience, or conduct which is threatening, intimidating, or abusing others.
While it would have been preferable for the work rules to have been entered into
the record, there is nothing which those rules state that Uick violated, and
those rules appear to be reiterated in the rest of the reprimand anyway.

Finally, the reprimand states that Uick violated the commonly accepted
modes of conduct in an employee-employer relationship. The Arbitrator finds that
it was Meteyard who violated any commonly accepted mode of conduct in an
employee-employer relationship. The Arbitrator is aware of no accepted mode of
employee-employer relationship that would accept an employer or supervisor
physically and verbally abusing an employee. Even if Uick's conduct had been so
egregious (and it was not) that it would have provoked a reasonable person,
Meteyard's conduct was well outside the commonly accepted bounds of management.

The Arbitrator finds that there is no just cause for the discipline imposed
on Uick. The reprimand cannot stand if it were issued for the manner in which
the truck was parked behind the recycling truck, as Pribyl was the driver of the
truck. It cannot stand if it were issued for not helping unload the paper bin,
as this was a new order being given out prospectively to all employees.
Finally, the Arbitrator finds nothing in the face of the written record of the
oral reprimand that can stand the test of just cause, as the City has failed to
prove that which the reprimand states. The appropriate remedy is for the City
to rescind the reprimand and expunge the personnel file accordingly.

However, the Union also asks the Arbitrator to find that Meteyard's and
Golden's conduct violated the labor contract. Meteyard's conduct has already
been noted. Golden's conduct refers to the January 23rd meeting, attended by
Golden, Fidler, Johnson, Dresen and Uick. The Union objects to statements made
by Golden to the effect that other Union members and Pribyl had problems working
with Uick, and that taxpayers have complained about him. The Union also objects
to statements that Golden allegedly made that two supervisors would talk to Uick
in the future and that taxpayers' statements would be given more weight that
Uick's side of a complain against him.

Where an employee with a clean record of more than nine years is told that
he could expect to be reprimanded in the future because of his past problems,
management again appears to be sweeping with too broad a brush, as each incident
must stand or fall on its own merit. However, neither Golden's conduct nor
Meteyard's conduct violates the labor contract. The Union points to the
Witnesseth section, which only states that the parties enter into the labor
agreement to cover wages and conditions of employment with a view of securing
harmonious cooperation between the employer and employees. Such a general
purpose statement does not lend itself to a grievance, because there is no
specific language that can be violated, and there is no effective remedy for the
failure to secure harmonious cooperation. Also, there is nothing in the
Management Right's clause that Meteyard and Golden explicitly violated.

As a general proposition, the disciplinary provisions of a labor contract
do not apply to supervisors. (8) The
conduct of a supervisors is an internal
matter for the City, and the Arbitrator does not have the authority to tell the
City how to manage its supervisors. While there may be exceptions to the general
rule, this case does not present one of them. Therefore, the Arbitrator denies
the grievance as framed in the first issue.

Accordingly, it is my decision and award that

AWARD

1. The Employer did not violate the collective bargaining agreement by Joe
Golden's and Glenn Meteyard's actions on January 20 and January 23, 1989.

2. The City of Racine did not have just cause to issue the Grievant, Tim
Uick, an oral reprimand on February 9, 1989.

3. The City is ordered to rescind the oral reprimand given to Tim Uick and
to expunge the personnel files of this reprimand.

Dated at Madison, Wisconsin this 9th day of March, 1990.

By

Karen J. Mawhinney, Arbitrator

1/ All dates are for the year 1989 unless otherwise
noted.

2/ The dates of grievance #8-89 and 9-89 are uncertain
because the
Arbitrator's record of Joint Exhibits #2 & 3 show the filing dates at
Step 2, instead of Step 1, and reflect a date of February 10. However,
Uick's testimony, which was unrebutted, indicates that he filed two
grievances before the City issued an oral reprimand to him. The
Arbitrator considered having the parties jointly submit the Step 1
documents for grievances 8-89 and 9-89, but inasmuch as the resolution of
this case does not turn on the filing dates, she accepts as fact that Uick
filed these two grievances sometime before January 30 when the City
subsequently issued an oral reprimand to Uick. While the Union is
attempting to show that the City's reprimand was in retaliation for Uick's
grievances against Meteyard and Golden, the Arbitrator does not need to
reach such a conclusion.

3/ See Tr. Vol. I - p. 32.

4/ Pribyl testified that he always drove the truck. While
the
City attempted
to refute that statement by Johnson's rebuttal testimony to the effect
that the City would not allow one person to always drive and that Johnson
had seen Uick drive the truck in the past, there is no doubt but that on
January 20, Pribyl was the driver of the solid waste truck when Pearson
arrived at Route 9 to pick up papers for recycling.

5/ Tr. Vol. I - p. 63 - 64.

6/ See Tr. Vol. II - p. 40.

7/ Even if Meteyard's version of the meeting were true,
that he only put his
hand on Uick's arm to get his attention, supervisors should not make
physical contact with employees any more than employees should not make
physical contact with supervisors, particularly in the heat of the moment.